Opinion
No. 11–P–1330.
2012-06-26
Charles LA'S CASE.
By the Court (KATZMANN, RUBIN, & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee appeals from a decision of the reviewing board summarily affirming the decision of the administrative judge (AJ), which granted the employee partial disability benefits pursuant to G .L. c. 152, § 35. In particular, the employee avers the AJ erred by (1) considering the limitations of the employee's disability on remand, as it was not open to reconsideration, and (2) failing to make the requisite factual findings to support the conclusion that the employee was partially disabled, and moreover, such a finding was an erroneous interpretation of the evidence presented.
Reviewing board of the Department of Industrial Accidents.
Where, as here, the reviewing board summarily affirms, we review the findings and conclusions of the administrative judge. Eady's Case, 72 Mass.App.Ct. 724, 725–726 (2008).
It is uncontested that the employee suffered two successive, work-place injuries on January 7, 2005. On that day, the employee was first struck on the head by a fifty-pound box, causing him to sustain physical injuries, and later that same day, struck in the head by another fifty-pound box, this time mishandled by a coworker. Although his physical injuries healed, the employee suffered psychiatric harm as a result of the incident. After hearings on September 7, 2006, and January 9, 2007, the AJ awarded the employee temporary partial disability benefits due to his ongoing psychiatric disability. The employer subsequently moved for modification of this order, and the same AJ, relying on the report and deposition testimony of an impartial medical examiner (IME), found the employee to be temporarily totally disabled due to his ongoing psychiatric disability. After the insurer appealed, the reviewing board determined the IME's opinion, germane to the second decision of the AJ, was inadequate and remanded the case with instructions to submit additional medical evidence. On remand, the same AJ considered further medical evidence and concluded that the employee suffered from a temporary, partial disability, to the same extent he found in his first decision, as a result of the industrial accident on January 7, 2005. The reviewing board summarily affirmed, and the employee timely appealed. On April 30, 2012, this court stayed appellate proceedings and remanded the case for the AJ to provide clarification as to the weight, if any, he assigned to the medical testimony given by the IME in reaching his 2010 decision, a decision in which the AJ ultimately rejected the IME's medical testimony and the adopted contrary medical testimony previously submitted. As the AJ makes clear in his further findings that he rejected the IME's medical testimony because he found said testimony to be inadequate and unpersuasive, we affirm.
The AJ further found that the employee was capable of working forty hours per week in an entry level, unskilled position, with an earning capacity of $300 per week. Accordingly, the AJ ordered partial disability benefits of $349.60 per month.
Discussion. The employee initially contends that the AJ erred in drawing a conclusion as to the extent of the employee's disability, as it was outside of the scope of the remand order from the reviewing board. As such, the employee asserts the general finding that the employee is only entitled to benefits to compensate for partial disability is erroneous. The insurer counters that the reviewing board effectively rejected the entire opinion, and thus scope of the injury was properly considered. We agree with the insurer.
Once the reviewing board deemed the IME inadequate and remanded without limitation to allow additional medical evidence, and a “decision anew,” the AJ was free to reconsider the extent of disability in light of all of the evidence. See Bongiovanni v. New England Telephone, 7 Mass. Workers' Comp. Rep. 53 (1993)(in the interest of justice and equity the judge on remand may reconsider by taking additional testimony and issuing a decision anew); Jones v. Arrow Mutual, 7 Mass. Workers' Comp. Rep. 347 (1993)(on recommittal the judge must reconsider the entire matter in light of the recent case law). The reviewing board did not remand on a narrow issue while affirming or reversing on other issues. Compare Anoniou v. Marshall's, Inc., 12 Mass. Workers' Comp. Rep. 393 (1998). As the case was remanded for an entirely new decision, there was nothing to prevent the administrative judge from reconsidering the extent of disability.
The employee further avers the AJ erred by failing to find facts specific to determining partial disability, and moreover, to the extent that the employee was found to be partially disabled, the employee asserts that the vast majority of the lay and medical evidence supports the conclusion that the employee, in reality, suffered from a total disability. We agree with the insurer that the AJ made express factual findings sufficient to conclude the employee's disability remained partial at the time of the remanded hearing.
It having been determined at a prior hearing that the employee was only partially disabled, the employee bore the burden of proving that his condition had changed between the date of the prior evidentiary hearing and the date of the evidentiary hearing in the present case. McEwen's Case, 369 Mass. 851, 854 (1976). See Foley's Case, 358 Mass. 230, 232 (1970). See also DeSa's Case, 3 Mass.App.Ct. 711 (1975). As a preliminary matter, the record is clear that the AJ made several subsidiary findings that no evidence existed to support the employee's claim that the disability had been exacerbated. Specifically, the AJ's decision includes explicit references to reports submitted by Dr. Hoffman and Dr. Jack Chang, both of which include support for his ultimate conclusion of partial disability.
Turning to the strength of the evidence presented to the AJ, while the employee and his wife testified that the employee acted more volatile and less active at home, as compared to the time of the last hearing, the AJ, who heard the evidence at both hearings, properly found a continuing, partial disability. “It is the exclusive function of the board to consider and weigh the evidence and to ascertain and settle the facts.” McEwen's Case, supra at 853, quoting from Chapman's Case, 321 Mass. 705, 707 (1947). That the AJ relied on this testimony to find the disability was ongoing, but was not persuaded that the employee suffered a worsening of his psychiatric or physical condition, such that he had become totally disabled from work, demonstrates the AJ's reliance on the supplemental testimony on remand. The AJ was not required to credit subjective reports that the employee was “worse,” particularly in light of the primary care physician's reports that noted improvement at times. See Brown v. Northeast Underpinnings, Inc., 22 Mass. Workers' Comp. Rep. 329, 331 (2008), aff'd sub nom. Brown's Case, 76 Mass.App.Ct. 1105 (2009).
Decision of the reviewing board affirmed.